Federal Supreme Court (Federal and Local Judicial Principles Unification Authority), Request No. 3 of 2023, decision of 21 December 2023
Where a creditor starts by petitioning for a payment order and, on appeal against the order, the appeal court finds that the conditions for issuing it are not met, the court must not stop at refusing the order or declaring the petition inadmissible, and must not send the claim back to the court of first instance. It must set the case down for pleading and decide the merits with its full appellate powers, examining the evidence and answering the defences. Remittal to first instance is allowed only where the claim was originally filed by an ordinary statement of claim and the supervising judge issued a payment order in it (Article 147(3) and (4) of the Civil Procedure Law).
The Federal Attorney General asked the Authority to resolve conflicting principles on what an appeal court does when it finds that a payment order should not have been issued. In the Dubai line (appeal 417 of 2023, decided 27 April 2023, following appeals 725 and 825 of 2022), a contractor had obtained a payment order for its invoices. On appeal the debt was disputed, an engineering expert was appointed and a lower sum found due. The Dubai Court of Cassation held that a debt needing expert evidence to establish and quantify is not fixed in writing, specified and due, as Article 62 of the 2018 Regulations to the former Civil Procedure Law required. It cancelled the order and declared the petition inadmissible, without deciding the debt. In the Abu Dhabi line (labour appeal 96 of 2022, decided 16 August 2022, followed by the Ras Al Khaimah Court of Cassation in appeal 37 of 2022), the appeal court had declared inadmissible a payment order based on a letter confirming commissions. The Abu Dhabi Court of Cassation held that it should instead have heard and decided the dispute, the legislature having provided a single level of merits review in that situation. The Authority held that both Article 68(3) and (4) of the 2018 Regulations and Article 147(3) and (4) of Federal Decree-Law No. 42 of 2022 distinguish two routes. Where the claim is brought from the outset by petition for a payment order, the appeal court decides the appeal in chambers within a week of service, may fix a hearing on the merits, and may not remit the claim to first instance. Where the claim was filed by ordinary statement of claim and the supervising judge issued a payment order in it, the appeal court that finds the conditions unmet remits it to first instance to be heard in the ordinary way. It adopted the Abu Dhabi principle, citing shorter procedures, speedy justice and avoiding payment of court fees twice; the appeal court's judgment remains open to the ordinary challenges.
Payment orders are the fast track for documented, fixed and due debts. Before this decision, a creditor whose order was set aside on appeal in Dubai had to start again with an ordinary claim. The Authority requires the appeal court itself to decide the debt in such cases, saving a further round of fees and time, unless the creditor began with an ordinary statement of claim. Article 147(3) and (4), on which the decision rests, read the same in the current text of the Civil Procedure Law.
| Article 147(3) and (4) of Federal Decree-Law No. 42 of 2022 (Civil Procedure Law) — text of article 147 |
| Articles 62 and 68(3) and (4) of Cabinet Resolution No. 57 of 2018 (Regulations to Federal Law No. 11 of 1992, the former Civil Procedure Law) |
| Articles 15 and 16 of Federal Law No. 10 of 2019 on the Regulation of Judicial Relations between Federal and Local Judicial Authorities |
“إذا انتهت محكمة الاستئناف إلى رفض إصدار أمر الأداء أو عدم قبول الطلب أن تحيل الموضوع للمرافعة للفصل فيه”Short quotation from the judgment as published by the court. The full judgment is on the court’s official service.
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